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Legalizing Marijuana – A post-election analysis

Proposition 19, the California voter initiative to “legalize” marijuana, was doomed from the very beginning. The problem was polling, which was always weak. Despite plenty of theories by the Yes on 19 group on why polling was wrong or didn’t matter, it mattered. The fact is that Prop. 19 never polled high enough to indicate a clear shot at victory. Hopefully, if and when we get an opportunity at financing another initiative, polling will be given much more weight than this time around.

Regardless of polling, this initiative was dead on arrival, because it was proposed during a midterm election. Based upon the low turnout of young people from this past election, it is clear that if Prop. 19 had been proposed two years later, when young voters traditionally flock to the polls to vote on a president, it would have passed. In fact, there was a general consensus by activists and funders that 2010 was the wrong election and no proposed initiative could pass. Despite strong pressure to wait until 2012, the Prop. 19 group soldiered on, ignoring the pitfalls that lay ahead.

Now that the election is over, it is time to publicly question the wisdom of supporting any initiative that promotes taxing cannabis. Yes, lots of folks think it will make us safer to pay taxes, but we’ve yet to see that to be the case. We didn’t need taxes to sell voters on supporting Prop. 215, California’s historic medical marijuana law, why do we need it now? Frankly, any taxation of cannabis, except for retail outlets for non-medical use, will invite the same fishing expeditions that the police already conduct based upon plant numbers. We can only hope that the next initiative will focus on real legalization and not peddling a watered down version of decriminalization with a sin tax, like we saw with Prop. 19.

Real legalization means something is totally legal and not subject to a long list of rules and regulations. Had Prop. 19 been more focused on providing real legalization, it would have enjoyed much greater support from activists and voters. If you look at the history of voter initiatives on medical marijuana, you’ll see that the highest vote totals went to initiatives like Prop. 215, which boldly established new rights, without space or plant limits or complicated regulatory schemes. Watered down initiatives have always resulted in poor results at the polls.

Another problem with Prop. 19 is that it was too vague with too many weasel words. We expunged all the weasel words from Prop. 215 and it is unfortunate that the same was not done before Prop. 19 qualified for the ballot.

Furthermore, the initiative itself pandered to police and prohibitionists, something many activists found to be especially obnoxious. Such pandering never helps to win votes, only to discourage activists from becoming involved. In short, this initiative was ill-conceived, poorly written and badly timed.

Prop. 215 was historic and successful, because it was short and to the point, much like the Bill of Rights. Prop. 19 was an administrative scheme that didn’t establish any rights, just a confusing regulatory outline that would have resulted in providing police with a new way to convict marijuana users for tax evasion.

Richard Lee, who spent his life savings to qualify 19 for the ballot, is a brilliant and dedicated activist who mounted an impressive effort to recruit minorities, unions, former police and judges, and phone bank volunteers. But Lee gambled that he could get young people to show up at a midterm election. Now, one must ask why anyone in the 18-21 age group would show up and vote for an initiative that specifically excluded them from participation. Excluding 18-21 year olds was totally unnecessary — it didn’t help us win any votes and it alienated an entire age group of young voters from showing up.

There is much that could have been added to Prop. 19 or to any future initiatives. For example, if a prosecutor loses a case against a defendant who otherwise was entitled to initiative protection, then the District Attorney’s office should automatically be held liable for defendant’s court costs. Furthermore, all future initiatives should make it crystal clear that nothing in that initiative can be used to modify or limit any rights already granted under Prop. 215.

Lee has already announced his group will introduce another initiative in 2012. That’s good news. Hopefully, lessons were learned and the next initiative by Lee’s group will be one we can all support and that will finally achieve victory.

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Sifting through the failure of Proposition 19, supporters of legalizing marijuana can point to many factors for why it lost 54% to 46%:

The fact that young voters, who reportedly supported legalization by a 40 percent margin, did not stampede to the polls; U.S. Attorney General Eric Holder’s threat to go after “individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law;” and California’s decriminalization, just one month before the vote, of possessing up to one ounce of weed.

Add to that the successful tarring of Prop 19 as a poorly worded measure that was vague on regulation and opponents hysterically warning of “potheads on the road” mowing down hundreds of innocents, and it’s easy to see why the measure fell short.

No doubt new legalization measures will be on the ballot in the future, whether in California or other Western states where acceptance of recreational usage is high. So it’s worth considering another reason that may have doomed Prop 19: cultural factors.

Last summer, on an extended visit to Los Angeles, I concluded that Proposition 19 was doomed. Hanging out in neighborhoods near Griffith Park, such as Silver Lake, Los Feliz and Hollywood, I talked to precisely the people one would expect would vote for legalization, but who indicated they would vote against it. (This is the part of the city where scores of dispensaries were shut down a few months ago.)

Theirs is a familiar demographic: people in their 30s and 40s, starting homeowners, many with young children, progressive across the board – pro-choice, antiwar, environmentally conscious, supporters of unions and rights for undocumented immigrants, against charter schools, tolerant and socially liberal. In theory, they even supported legalization. All used to smoke pot, some still did. Call them the “Marijuana Moms and Dads.”

Yet why would they all find Proposition 19 unappealing? Because of the actually existing legalization.

As a New Yorker, I found it remarkable to see a thriving marijuana economy – the dispensaries, cafes, growing-supply stores, head shops, “universities,” campaign offices and the like. Walking down one short block with at least five businesses devoted to pot – from growing to buying to consuming – it seemed unreal and normal, libratory and decadent. And this is precisely what bothered them: the visibility of an economy that is, frankly, seedy.

In essence, Proposition 19 may have been a victim of the success of the legalization movement. The incremental strategy has chalked up many victories since the passage of Compassionate Usage Act of 1996 (“medical marijuana”). Decriminalization was a big win, for one, but it may have blunted the argument that legalization was needed to remedy unfair and racially biased sentencing.

More important, for many, there has been enough or perhaps even a bit too much legalization for their liking. The touted benefits of broad legalization – such as an infusion of tax money for a bankrupt state – were not worth the perceived downsides of an open-air pot culture.

Marijuana is already a big business that employs tens of thousands of people throughout California, particularly in the lush Emerald Triangle, and probably pumps billions of dollars into the state economy. But do you really want your neighborhood turned into little Amsterdam, even if you toke up on the weekend?

For the Marijuana Moms and Dads I encountered, their thinking boiled down to, “I can get weed for myself and smoke it at home after the kids are in bed without a hassle, so why do I want to worry that teenagers, slackers and burnouts will be smoking up in my neighborhood as I go for a stroll with my family?” I think many of them also imagined legalization could mean having to run a gauntlet of pot cafes full of stoned tourists just to buy groceries. In addition, they were concerned about the impact that a robust marijuana economy would have on their home value.

Legalization supporters might grumble about these social and cultural factors, and dismiss such people as yuppies or social conservatives, but this is far from the truth. To win future battles, they have to gain the support of these people, who are natural allies.

It’s completely conceivable that getting high in the open could follow from Prop 19. Yes, the measure banned usage in public places, but the ban on public drinking doesn’t stop the guy on the corner from chugging booze out of a paper bag. In pre-Giuliani New York, the NYPD did not arrest drug users, only sellers, and scrums of people smoking pot openly was a common sight in neighborhoods like the Lower East Side.

Back then, in New York, many parents of small children – even some potheads – were unhappy about open drug use (though it was not just pot smoking they were upset about, it was also the rampant drinking, and heroin and crack use). No matter how open-minded you are as a parent, you want to control how your child encounters such things. For example, even if you talk to your children openly about sex, that doesn’t mean you want them to see people screwing in public.

The legalization movement needs to figure out how to address the Marijuana Moms and Dads’ apprehensions while appealing to their libertarian attitudes and progressive politics. A significant slice of the population, their support – or opposition – could make the difference between victory or defeat in the close-fought battles over legalization to come.

Arun Gupta is a founding editor of The Indypendent newspaper. He is writing a book on the decline of American Empire for Haymarket Books.

Prop 19 lost 46-54 Tuesday by around a half a million votes, and those lack of votes can be attributed to: youth voter apathy, funding problems, and a powerful attack from the front and the rear, among other factors. An exit poll done by Edison Research of 2,200 precincts Tuesday found just 10 percent of voters considered Prop 19 their number one issue. Paid for by the Los Angeles Times, the Edison poll showed half of voters thought the governor's race was the main event. Even among young voters, Prop 19 came in third in importance.

Yes on 19 had 219,000 Facebook fans to 1,000 fans of No on 19, but it didn't translate into enough votes. Campaign headquarters made 56,000 calls Tuesday, but lacked that energy several weeks back as the deadline to register to vote passed. Legalization Nation interviewed young smokers who supported Prop 19, but never registered to vote. Another young smoker said he would have voted yes, but failed to register absentee and vote before a planned trip overseas. And young voters aren't a monolithic block. The Bay Citizen filmed conservatives and contrarians at UC Berkeley who were voting against the measure.

Prop 19 didn't raise much money. It was an outsider campaign that shot for $15 million and got less than $5 million. Arguably, if Tax & Regulate got the money, it could've bought votes through advertising. But using Meg Whitman's dollars-for-votes campaign as a benchmark, Prop 19 would have needed about $25 million total.

The Obama administration is also bound by law to fight legalization. Three weeks before the election, US Attorney General Eric Holder said he would “vigorously enforce” federal law in California if Prop 19 passed. He was joined in opposition by Jerry Brown, Meg Whitman, Barbara Boxer, Dianne Feinstein, Nancy Pelosi, both attorney general candidates, the Chamber of Commerce, the police lobby and fundamentalist Christians who banned gay marriage via Prop 8.

Prop 19 also faced a significant backlash from their own flanks in the radical drug reform community. The so-called “Stoners Against Legalization” were a minority of a minority, but a vocal one. They said Prop 19 was a bad law that didn't go far enough and viewed it through a lens of vehement anti-capitalism. It did not carry the growing communities in the Emerald Triangle.

Governor Arnold Schwarzenegger also threw a curve ball at the end of the campaign when he signed a bill making personal possession of marijuana an infraction — equivalent to a speeding ticket. The governor's signature amplified the popular idea that pot is already pretty much legal in California. The awkward medical cannabis industry has emerged as a state of detente between warriors and reformers. Citizens apparently feel comfortable giving speeding tickets to recreational smokers, but jail time to their hook-up, who are often minorities. More than 14,000 Californians were arrested for cannabis sales in 2007, and they face prison for repeat counts.

On a larger level, Prop 19 tried and failed to use the window of opportunity created by the immense economic hole the state has dug for itself. The Depression helped end alcohol prohibition, but the Great Recession didn't stop the war on pot and that window may have closed. Californians say they feel strapped, but even under a World War's worth of debt, they've proven willing to spend $1 billion a year enforcing unenforceable pot laws.

[imgl=white]https://www.drugs-forum.com/forum/attachment.php?attachmentid=17699&stc=1&d=1289060475[/imgl]Now that California's Proposition 19, which would have legalized marijuana, has gone down in defeat, those who follow drug policy issues are beginning to reflect on why the initiative failed to pass and what the result might mean for marijuana policy going forward.

As someone who researches and writes about controlled substances laws, I'm happy to have the opportunity to share a few preliminary thoughts of my own.

With regard to why Proposition 19 faltered, there are a number of individual factors that likely cost the measure a few percentage points of support, such as insufficient funds for a statewide television ad campaign and running the measure in a midterm where youth turnout was much lower than in a presidential cycle. But, it is also important to keep in mind that passage was always something of a long shot.

Although polling showed the initiative with support in the low 50-percent range for much of the campaign, conventional wisdom holds that measures polling below 60 percent going into a campaign are unlikely to pass. This is because most ballot initiatives tend to lose support over time, particularly in the home stretch of the campaign. Simply put, it's easier to convince someone to vote against something than for it. A vote against a ballot measure preserves the status quo. As a result, sowing one or two doubts about an initiative in a voter's mind is usually enough to get that person to oppose it, even if he or she is generally supportive of the aims of the initiative.

The "No on Prop.19" campaign smartly played on this dynamic. Their campaign slogan, for example, did not even mention marijuana legalization but instead called on voters to reject the initiative because it was "a jumbled legal nightmare" regardless of their views on legalization. The Chamber of Commerce's advertisement against the measure likewise ominously warned voters that "Prop. 19 would do more than simply legalize marijuana," and focused on the supposed adverse effects of an employment provision contained in the initiative.

In other words, the "No on Prop. 19" campaign did not win by running a campaign against marijuana legalization generally but by sowing doubts in the minds of swing voters based on specific provisions in the proposed law. To be sure, this strategy would not have succeeded if the opposition had not also begun with a solid base of voters who oppose legalizing marijuana on principle. But, those voters alone would not have been enough to defeat Proposition 19.

The nature of the opposition's campaign also helps to explain why the initiative's supporters have not seemed particularly dejected by the loss. The measure's proponents know that even though Proposition 19 only received 46 percent of the vote, there is little doubt that a majority of California voters currently favor legalizing marijuana in principle. If drug policy reformers return in 2012 with a tighter measure that speaks to the "No on Prop. 19" campaign's criticisms by, for example, eliminating Proposition 19's employment provision and adding a provision to increase penalties for drugged driving, they have a very good chance at capturing the additional four percent that they would need to win. Because of this, the line coming out of the "Yes on 19" campaign on election night was that the results showed marijuana legalization, like gay marriage, is no longer a question of if but when.

Whether or not that proves to be the case, I would not be at all surprised if 2012 sees ballot initiatives to legalize marijuana in three to five states (likely candidates include Washington, Oregon, Colorado, Nevada, Massachusetts and, of course, California, among others).

Of course, attempting to predict the future is always dangerous business. For all I know, 2012 might be the year the world ends rather than the year of marijuana-themed ballot measures.

Regardless of what the future may hold, however, Proposition 19 confirmed beyond any lingering doubt the drug war era is over. A sizeable portion of the electorate believes that the war on drugs has failed and these voters are open to considering policies (like marijuana legalization) that would have been politically unthinkable in the recent past. Five years ago, "legalize it" was a message relegated largely to the t-shirts of dreadlocked reggae festival attendees. Today, it is a mainstream political issue that garnered more votes in California than Republican candidate Meg Whitman did for governor.

Alex Kreit is assistant professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law in San Diego. Kreit is author of the ACS Issue Brief, "Toward a Public Health Approach to Drug Policy."